The Brexit Withdrawal Agreement: Taking back “control of our laws”?

In a recent article in the Spectator, Martin Howe QC criticises the Brexit Withdrawal Agreement on a number of grounds. One of his criticisms is that the arrangements set out in the Withdrawal Agreement “would not give us back control of our laws”. This appears to be consistent with the surprisingly candid assessment of former Brexit Secretary Dominic Raab, who told the Today programme on BBC Radio 4 that Brexit on the terms set out in theWithdrawal Agreement would be “even worse” than remaining a member of the European Union because, under the Withdrawal Agreement, the United Kingdom would “effectively be bound by the same rules but without [any] control or voice over them”.

On a newly launched website entitled Brexit Facts, the purpose of which is to “offer rebuttal to criticisms and inaccurate reporting in the lead up to Parliament’s meaningful vote on the deal”, the Government takes issue with Howe’s assertion that the Withdrawal Agreement would not restore domestic control “over our laws”. The Government’s “rebuttal” of Howe’s view runs as follows:

In leaving the EU, the jurisdiction of the CJEU in the UK will end, including the end of direct effect and supremacy of EU law. Going forwards, all laws in the UK will be passed by our elected representatives in Belfast, Cardiff, Edinburgh and London. UK courts will no longer be able to appeal to the CJEU, other than for a time-limited period on the important matter of citizens [sic] rights and on very specific aspects of our exit from the EU budget. Disputes between theUK and the EU will not be resolved by the CJEU; its role will be strictly limited to the interpretation of EU law, consistent with the principle that the court of one party cannot determine disputes between the two.

There are some significant difficulties with this statement. Take, for instance, the assertion that “[i]n leaving the EU, the jurisdiction of the CJEU in the UK will end”. For one thing, the CJEU will continue to determine cases in the normal way during the transitional period, the length of which remains unclear at present. Meanwhile, for eight years after the end of the transitional period, UK courts themselves will be able to refer questions to the CJEU concerning the interpretation of the citizens’ rights part of theWithdrawal Agreement, and the CJEU’s rulings will be binding on UK courts. And Article 4(5) of the Withdrawal Agreement obliges UK judicial and administrative authorities to “have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period”.

The Withdrawal Agreement also makes special provision for the role of the CJEU in relation to disputes arising under the Agreement. The Government has made much of the fact that disputes under the Withdrawal Agreement will be dealt with by an independent arbitration process rather than by theCJEU. Crucially, however, an arbitration panel established under that process will have to refer questions concerning the interpretation of EU law to the CJEU. Importantly,the CJEU has exclusive jurisdiction to render such interpretations under the Withdrawal Agreement and its rulings are, according to Article 174(1), “binding on the arbitration panel”. And the arbitration panel’s rulings are, in turn, “binding on the [European] Union and the United Kingdom” (Article 175). Thus in such circumstances it will, as the Government says, be the arbitration panel, not the CJEU, that “resolves”disputes between the UK and the EU under the Withdrawal Agreement. But it is perfectly clear that as the authoritative interpreter of EU law, including in respect of disputes that end up in the arbitration process, the CJEU will retain an important and potentially decisive role.

The Government’s claim that “leaving the EU” will mean “the end of direct effect and supremacy of EU law” is also problematic. In particular, it is hard to reconcile with Article 4 of the Withdrawal Agreement.It stipulates that relevant provisions of the Withdrawal Agreement itself, along with relevant provisions of EU law to which the Agreement refers, will have direct effect in the UK. Article 4 also makes it very clear that relevant provisions of the Withdrawal Agreement and of EU law will have supremacy overUK law. Indeed, the Withdrawal Agreement explicitly stipulates — in a way that existing EU Treaties do not — that the UK must enact “domestic primary legislation” in order to make good on its undertakings regarding direct effect and supremacy. This, says the Agreement, will ensure that “judicial and administrative authorities” in the UK are authorised to “disapply” domestic law that is “inconsistent” or “incompatible” with relevant provisions of theWithdrawal Agreement and of EU law.

It might seem that this is unremarkable, given that EU law already has direct effect and supremacy in the UK. It might also be assumed that the requirements in the Withdrawal Agreement regarding direct effect and supremacy are of limited significance given that the transitional period is time limited (albeit that, as noted above, the date on which the transitional period will end presently remains unclear). However, while the transitional period is time limited, the Withdrawal Agreement is not relevant only during that period. Indeed, substantial parts of the Withdrawal Agreement will not actually be in force during the transitional period, because until that period ends (regular) EU law (subject to limited exceptions) continues to apply in the UK as normal. Thus, much of the Withdrawal Agreement, such as most of the part dealing with citizens’ rights, will enter into effect only after the transitional period has come to an end. Crucially, Article 4, which provides for direct effect and supremacy, is not limited to the transitional period. This means that the EU law principles of direct effect and supremacy will continue to apply to relevant provisions of the WithdrawalAgreement and to relevant provisions of EU law to which the Agreement refers once the UK has “fully” left the EU at the end of the transitional period.

Where does this leave us? Will leaving the EU “give us back control of our laws”? As with most things Brexit-related, the position is complex.Undoubtedly there will be many areas presently covered by EU law over which the UK will have flexibility to legislate differently once the transitional period is over. But it is equally the case that the CJEU’s role in relation to the UK will not end when the transitional period ends. It is also misleading to suggest that “direct effect and supremacy of EU law” will end when the UK leaves the EU. Indeed, as noted above, the Withdrawal Agreement explicitly contemplates that those principles will continue to apply beyond the end of the transitional period. None of this is intended to be read as an argument concerning the merits of the Withdrawal Agreement. But it is important that debate about the merits of the Agreement proceeds on the basis of an accurate understanding of the legal position. It is, it might be added, particularly desirable that that position should be accurately stated on a Government website entitled Brexit Facts.

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